Freeman

Heretofore the state highway commission awarded a contract to Freeman & Whiting to build a portion of the state highway located in San Mateo County. Pursuant to the provisions of chapter 303, Statutes of 1919, the contractors, as principals, and the American Indemnity Company, as surety, executed to the state of California a bond. The bond was in all respects as provided by the statute. Thereafter the contractors entered upon the performance of the contract. While so engaged they obtained certain materials and supplies from the plain tiff. Later the construction was , completed. The plaintiff duly filed a notice to withhold. In due time it commenced this action against the contractors and the bonding company. Later the defendants appeared and filed a demurrer. While the demurrer was pending the contractors obtained a withdrawal of all moneys from the state of California. After they obtained possession of the moneys they paid to the plaintiff the principal of the sum claimed by the plaintiff, but did not pay the accrued interest or costs. Later they tendered a check covering the amount of costs and interest, but not containing any sum whatever in payment of plaintiff’s attorney…